Trumps DOJ continues to rain nonsense
New York, NY – The Second circuit is not pleased with Trump’s DOJ’s unwelcome, unwarranted and, frankly, unpopular, amicus brief in Zarda v Altitude Express, , in which the administration takes the ill-informed stance that Title VII does not prohibit employers from discriminating against an employee on the basis of their sexual orientation.

This past Tuesday, Judges for the Second Circuit Court of Appeals heard arguments in Zarda, the case in which a sky diving instructor was denied a position because of their sexual orientation. Particularly, the court heard arguments on whether discrimination against gay workers is a form of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.
Back in July, Trump’s administration filed an amicus brief which made the administration’s stance clear, Title VII does not prohibit discrimination based on a person’s sexual orientation. It must be noted, an amicus brief means “friendly brief,” but it is better understood as a brief from someone who has no standing in the case but wants to make their opinion known anyway.
The most interesting thing about this hearing, is that the Department of Justice takes a stance that is in direct opposition to the stance the Equal Employment Opportunities Commission (EEOC) has taken. As both are departments under the executive branch of government, it is highly unusual that they would be butting heads on such a hot button issue.
Much of the dispute stems from the fact that the head of the EEOC has a fixed term limit, one that cannot be changed by *President Trump. *President Trump has made it a habit to fire as many people from Obama’s administration as possible. What’s even more curious, is that the Second Circuit is posed to follow the same course as the Seventh circuit in ruling that sexual orientation is protected under Title VII’s sex and gender discrimination provisions, as noted by Chief Judge Robert Katzmann of the 2nd Circuit.
EEOC attorney Jeremy Horowitz made the case for the commission, drawing attention to three key factors: 1) under a “but –for” standard for discrimination, anti-gay discrimination qualifies under as sex discrimination because, but for the gay persons sex, they would not suffer discrimination; 2) Horowitz’ sex stereotyping theory harkens back to the sex stereotyping standard under Price Waterhouse v. Hopkins,  which held that sexual orientation discrimination is a form of sex discrimination because gay people fail to confirm to traditional gender stereotypes, specifically, the stereotype of who they are expected to be attracted to; and, 3) under Horowitz’ associational orientation theory, he asserts that, in the same way miscegenation laws were discriminatory because they discriminated against individuals of different races who wished to marry, sexual orientation discrimination is discriminatory because it discriminates against individuals who are of the same sex.
Deputy Assistant Attorney General Hashim M. Mooppan was tasked with upholding Trumps stance on Title VII, stating that the position was a “radical reinterpretation of Title VII” that rests on a “parlor trick.”
The Second circuit has yet to rule on the controversial topic, however, all signs point to the second circuit adopting the same stance as the Seventh circuit’s Judge Richard Posner has taken, and ruling in favor of the broader reading of Title VII.

The skilled New York City sexual harassment attorneys at the Derek Smith Law Group, PLLC have years of experience litigating claims of sexual orientation discrimination. If you feel you have been discriminated against on the basis of your sexual orientation, then give our attorneys a call at (800) 807-2209 for your free consultation.

About Derek Smith

Attorney Derek T. Smith is an experienced sexual harassment & discrimination law litigator who has particular experience in the areas of workplace discrimination, sexual harassment, wrongful termination, civil rights litigation, employment law and civil litigation.

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